A Boots Instruction
by: Kkreuscher • December 31, 2010 • no comments
A Boots instruction from Kenneth Kreuscher:
18. Defendant's Special Jury Instruction - Jury Unanimity (Boots) Instruction for Count 1 ([CRIME])
In order to return a guilty verdict, or an acquittal, on Count 1 ([CRIME]), all [twelve/ten/six * * * request twelve if also requesting total juror unanimity, request ten in the alternative, request six if in a misdo case* * *] jurors must base their decision on the same act or acts. For example, two jurors cannot base their decision on one of Mr. [Defendant]'s acts while the other [four, eight, ten] jurors base their decision on a different act of Mr. [Defendant].
Comment and Points and Authorities:
Defendant only requests this instruction if the state does not elect to focus on a specific factual allegation in its prosecution of Count 1 ([CRIME]).
The landmark case on this issue is State v. Boots, 308 Or 371, 780 P2d 725 (1989). More recently, in State v. Pauley, 211 Or App 674, 156 P3d 128 (2007), the Court of Appeals explained:
"[A]rticle I, section 11, of the Oregon Constitution provides that, '[i]n all criminal prosecutions, the accused shall have the right to public trial by an impartial jury * * *[.] [I]n the circuit court ten members of the jury may render a verdict of guilty or not guilty[.]' See also ORS 136.450(1) (requiring the concurrence of at least 10 of 12 jurors in criminal matters). The jury concurrence requirement also requires that the requisite number of jurors agree on the factual occurrences that constitute a crime. Boots, 308 Or at 378-79. A court's failure to give a jury instruction requiring 'agreement on all material elements of a charge in order to convict' is error. State v. Lotches, 331 Or 455, 472, 17 P3d 1045 (2000), cert den, 534 US 833 (2001) ([emphasis original in Pauley]).
"In Boots, the defendant was charged with aggravated murder based on two different theories: (1) that the defendant committed the homicide in the course of committing robbery in the first degree and (2) that the defendant committed the homicide to conceal the identity of the perpetrators of the robbery. 308 Or at 374. The trial court affirmatively instructed the jury that it was not necessary for them to agree on the theory of aggravated murder. The Supreme Court concluded that the trial court erred in instructing the jury that concurrence was not required, stating, ''[t]he [jury] unanimity rule thus requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged.'' Id. at 380 (quoting United States v. Gipson, 553 F2d 453, 457-58 (5th Cir 1977))."
